New Journal of Law and Courts Debuts with a Discussion of the Link Between SCOTUS Takings Jurisprudence and Ideology

The University of Chicago Press and the Law and Courts Section of the American Political Science Association has published the inaugural volume of the new Journal of Law and Courts (JLC).  The JLC is an interdisciplinary, peer-reviewed journal covering a wide-range of topics devoted to the examination of legal institutions, actors, processes and policy.  JLC “aims to be the premier journal for members of the law and courts intellectual community in terms of quality and scope of articles and size and diversity of audience.”

What caught our attention about this new journal was an article by Ohio State University Political Science Professor Emeritus Lawrence Baum.  In “Linking Issues to Ideology in the Supreme Court: The Takings Clause,” Professor Baum examines the link between issues and ideology within the Supreme Court by specifically analyzing the Court’s takings jurisprudence and justices’ votes on takings cases.

From the abstract:

This article probes explanations for the linkages between Supreme Court justices’ broad ideological stances and their positions in specific issue areas. The justices’ votes in decisions on the takings clause of the Fifth Amendment showed no consistent ideological pattern in the 1937–79 terms but have fallen along clear ideological lines since then. Analysis of relevant evidence indicates that this shift reflected both changes in the content of takings cases and changes in the lineup of political and social groups on takings issues. The shift and its sources suggest a need to rethink the role of the justices’ policy preferences in shaping their choices.

Baum sets the stage for the article with a brief background concerning Kelo and its procedural history.  He writes, “As for the litigants in Kelo, conservative justices might sympathize with an economically troubled city that sought to spur development in conjunction with the initiative of a business corporation. For their part, liberal justices might sympathize with a woman who was far from wealthy and who was in danger of losing a home that she loved, especially with a large company implicitly standing on the other side. Why, then, did the Court’s liberals favor the city and its strong conservatives favor Kelo?”

The article reviews the Court’s takings jurisprudence from 1870 through 2012 giving specific attention to the period between 1937 and 2012.  Baum notes that the Court demonstrated no consistent ideological pattern between 1937 and 1979.  Further, he finds that a change occurred between the 1970 and 1980 in which the Court shifted from having no ideological pattern relating to its takings jurisprudence to “a clear ideological dimension in the justices’ voting.”  Baum points to logical and social sources for this ideological shift while also noting that the 1970’s brought the beginning of environmental regulation and other policies considered “liberal” which spurred “conservative” challenges in and outside of the Court.

Baum concludes: “What happened in takings, however, does point to some broader lessons. In conjunction with what scholars have gleaned from some other fields of policy, it demonstrates that the linkages between ideology and issues in the Supreme Court are neither immutable nor simply a product of logical deduction from general premises. Rather, how justices line up on particular issues reflects social and political processes outside the Court.”

The JLC will be published biannually online and in print for a reasonable subscription fee.  The inaugural March 2013 issue, however, is available for free here.

The JLC is edited by David E. Klein, Associate Professor of Politics at the University of Virginia.

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